EXHIBIT 2
NEITHER THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SHARES ISSUABLE
UPON EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. NEITHER THE
SECURITIES REPRESENTED HEREBY MAY BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE
DISPOSED NOR MAY THE SHARES BE ISSUED UPON EXERCISE UNLESS SUCH SECURITIES AND
SHARES ARE REGISTERED UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS OR THE COMPANY RECEIVES AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY
THAT SUCH SALE, TRANSFER, PLEDGE OR ISSUANCE IS EXEMPT FROM REGISTRATION.
MODERN MEDICAL MODALITIES CORPORATION
NON-QUALIFIED
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement"), is made as of this 27 day
of September 2006 by and between Modern Medical Modalities Corporation, a New
Jersey corporation (the "Company"), and Xxxx X. Xxxxxxxx ("Optionee").
RECITAL
Pursuant to the 2003 Stock Option Plan (the "Plan") of the Company, the
Board of Directors of the Company or a committee to which administration of the
Plan is delegated by the Board of Directors (in either case, the
"Administrator") has authorized the granting to Optionee of an incentive stock
option to purchase the number of Common Shares of the Company specified in
Paragraph 1 hereof, at the price specified therein, such option to be for the
term and upon the terms and conditions hereinafter stated.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and of the undertakings
of the parties hereto contained herein, it is hereby agreed:
1. Number of Shares; Option Price. Pursuant to said action of the Board of
Directors, the Company hereby grants to Optionee the option ("Option") to
purchase, upon and subject to the terms and conditions hereof, 100,000 Common
Shares of the Company at the price of $0.50 per share ("Exercise Price").
2. Term. This Option shall expire on the day before the fifth (5th)
anniversary of the date hereof (the "Expiration Date") unless such Option shall
have been terminated prior to that date in accordance with the provisions of
this Agreement. The term "Affiliate" as used herein shall have the meaning as
set forth in the Federal Securities laws of the United States.
3. Shares Subject to Exercise. Common Shares subject to exercise shall be
one-third (1/3) of such Common Shares on 9/26, 2007, one-third (1/3) of such
Common Shares on 9/26, 2008, and the remaining one-third (1/3) of such Common
Shares on 9/26, 2009. All Common Shares shall thereafter remain subject to
exercise for the term specified in Paragraph 2 hereof.
4. Method and Time of Exercise. The Option may be exercised by written
notice delivered to the Company at its principal executive office stating the
number of Common Shares with respect to
which the Option is being exercised, together with:
(A) a check or money order made payable to the Company in the amount
of the exercise price and any withholding tax, as provided under
Paragraph 5 hereof; or
(B) if expressly authorized in writing by the Administrator, in its
sole discretion, at the time of the Option exercise, the tender to
the Company of Common Shares owned by Optionee having a fair market
value, as determined by the Administrator, not less than the
exercise price, plus the amount of applicable federal, state and
local withholding taxes.
Not less than 100 shares may be purchased at any one time unless the
number purchased is the total number purchasable under such Option at the time.
Only whole shares may be purchased.
5. Tax Withholding. As a condition to exercise of this Option, the Company
may require Optionee to pay over to the Company all applicable federal, state
and local taxes which the Company is required to withhold with respect to the
exercise of this Option. At the discretion of the Administrator and upon the
request of Optionee, the minimum statutory withholding tax requirements may be
satisfied by the withholding of Common Shares otherwise issuable to Optionee
upon the exercise of this Option.
6. Exercise on Termination of Employment. If for any reason other than
death or permanent and total disability, Optionee ceases to be employed by the
Company or any of its Affiliates (such event being called a "Termination"), this
Option (to the extent then exercisable) may be exercised in whole or in part at
any time within three months of the date of such Termination, but in no event
after the Expiration Date; provided, however, that if such exercise of this
Option would result in liability for Optionee under Section 16(b) of the
Securities Exchange Act of 1934, then such three-month period automatically
shall be extended until the tenth day following the last date upon which
Optionee has any liability under Section 16(b), but in no event after the
Expiration Date. If Optionee dies or becomes permanently and totally disabled
(as defined in the Plan) while employed by the Company or an Affiliate or within
the period that this Option remains exercisable after Termination, this Option
(to the extent then exercisable) may be exercised, in whole or in part, by
Optionee, by Optionee's personal representative or by the person to whom this
Option is transferred by devise or the laws of descent and distribution, at any
time within six months after the death or six months after the permanent and
total disability of Optionee, but in no event after the Expiration Date. In the
event this Option is treated as a non-qualified stock option, then and to that
extent, "employment" would include service as a director or as a consultant. For
purposes of this Paragraph 6, Optionee's employment shall not be deemed to
terminate by reason of sick leave, military leave or other leave of absence
approved by the Administrator, if the period of any such leave does not exceed
90 days or, if longer, if Optionee's right to reemployment by the Company or any
Affiliate is guaranteed either contractually or by statute.
7. Nontransferability. Except with the express written approval of the
Administrator, this Option may not be assigned or transferred except by will,
qualified domestic relations order or by the laws of descent and distribution,
and may be exercised only by Optionee during his lifetime and after his death,
by his personal representative or by the person entitled thereto under his will
or the laws of intestate succession.
8. Optionee Not a Shareholder. Optionee shall have no rights as a
shareholder with respect to the Common Shares of the Company covered by this
Option until the date of issuance of a stock certificate or stock certificates
to him upon exercise of this Option. No adjustment will be made for dividends or
other rights for which the record date is prior to the date such stock
certificate or certificates are issued.
9. No Right to Employment. Nothing in the Option granted hereby shall
interfere with or limit in any way the right of the Company or of any of its
Affiliates to terminate Optionee's employment or consulting at any time, nor
confer upon Optionee any right to continue in the employ of, or consult with,
the Company or any of its Affiliates.
10. Anti-dilution Adjustment.
10.1 Stock Dividends, Stock Splits, Etc. If the Company declares or
pays a dividend on its Common Stock payable in Common Stock or other securities,
or subdivides the outstanding Common Stock into a greater amount of Common
Stock, then upon exercise of this Option, for each Common Share acquired,
Optionee shall receive, without cost to Optionee, the total number and kind of
securities to which Optionee would have been entitled had Optionee owned the
Common Shares of record as of the date the dividend or subdivision occurred.
10.2 Reclassifications, Exchange or Substitution. Upon any
reclassification, exchange, substitution, or other event that results in a
change of the number and/or class of the securities issuable upon exercise of
this Option, Optionee shall be entitled to receive, upon exercise of this
Option, the number and kind of securities and property that Optionee would have
received for the Common Shares if this Option had been exercised immediately
before such reclassification, exchange, substitution, or other event. The
Company or its successor shall promptly issue to Optionee a new Option for such
new securities or other property. The new Option shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Section 10.2, including, without limitation, adjustments to
the Exercise Price and to the number of securities or property issuable upon
exercise of the new Option. The provisions of this Section 10.2 shall similarly
apply to successive reclassifications, exchanges, substitutions, or other
events.
10.3 Adjustments for Combinations, Etc. If the outstanding shares of
Common Stock are combined or consolidated, by reclassification or otherwise,
into a lesser number of shares, the Exercise Price shall be proportionately
increased.
10.4 Merger or Consolidation. In case of any consolidation of the
Company with, or merger of the Company into any other corporation, or in the
case of any sale or conveyance of all or substantially all of the assets of the
Company other than in connection with a plan of complete liquidation of the
Company, then as a condition of such consolidation, merger or sale or
conveyance, adequate provision will be made whereby the registered holder of the
Option will have the right to acquire and receive upon exercise of this Option
in lieu of the shares of Common Stock immediately theretofore subject to
acquisition upon the exercise of this Option, such shares of stock, securities
or assets as may be issued or payable with respect to or in exchange for the
number of shares of Common Stock immediately theretofore subject to acquisition
and receivable upon exercise of this Option had such consolidation, merger or
sale or conveyance not taken place. In any such case, the Company will make
appropriate provision to insure that the provisions of this Section 10 hereof
will thereafter be applicable as nearly as may be in relation to any shares of
stock or securities thereafter deliverable upon the exercise of this Option.
11. Restrictions on Sale of Common Shares. Optionee represents and agrees
that upon his exercise of this Option, in whole or in part, unless there is in
effect at that time under the Securities Act a registration statement relating
to the Common Shares issued to him, he will acquire the Common Shares issuable
upon exercise of this Option for the purpose of investment and not with a view
to their resale or further distribution, and that upon such exercise thereof he
will furnish to the Company a written statement to such effect, satisfactory to
the Company in form and substance. Optionee agrees that any
certificates issued upon exercise of this Option may bear a legend indicating
that their transferability is restricted in accordance with applicable state and
federal securities law. Any person or persons entitled to exercise this Option
under the provisions of Section 5 hereof shall, upon each exercise of this
Option under circumstances in which Optionee would be required to furnish such a
written statement, also furnish to the Company a written statement to the same
effect, satisfactory to the Company in form and substance.
12. Notices. All notices to the Company shall be addressed to the Chief
Financial Officer at the principal executive office of the Company, and all
notices to Optionee shall be addressed to Optionee at the address of Optionee on
file with the Company or its subsidiary, or to such other address as either may
designate to the other in writing. A notice shall be deemed to be duly given if
and when enclosed in a properly addressed sealed envelope deposited, postage
prepaid, with the United States Postal Service. In lieu of giving notice by mail
as aforesaid, written notices under this Agreement may be given by personal
delivery to Optionee or to the Chief Financial Officer (as the case may be).
13. Sale or Other Disposition. If Optionee at any time contemplates the
disposition (whether by sale, gift, exchange, or other form or transfer) of any
Shares acquired by exercise of this Option, he or she shall first notify the
Company in writing of such proposed disposition and cooperate with the Company
in complying with all applicable requirements of law, which, in the judgment of
the Company, must be satisfied prior to such disposition.
[Signature on following page]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
MODERN MEDICAL MODALITIES CORPORATION
By: /s/ Xxxxx Xxxxx
------------------------------
Name: Xxxxx Xxxxx
Title: Chairman and CEO
OPTIONEE
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxxx
Address: 0000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
EXHIBIT A
PURCHASE FORM
To: Modern Medical Modalities Corporation Dated: _______________
The undersigned, pursuant to the provisions set forth in the attached
option, hereby elects to purchase (check applicable box):
______________ shares of the Common Stock of Modern Medical Modalities
Corporation covered by such Option.
The undersigned herewith makes payment of the full Exercise Price for such
shares at the price per share provided for in such Option. Such payment takes
the form of:
1. $________ in lawful money of the United States.
or:
2. __________ shares of Modern Medical Modalities Corporation's common
stock with a fair market value of $__________.
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Print or Type Name
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(Signature must conform in all respects
to name of holder as specified on the
face of the Option)
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(Street Address)
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(City) (State) (Zip Code)
